The petitioners in the case include Congress leader Jaya Thakur and the non-profit Association for Democratic Reforms (ADR).

It is for the Union government to explain why it went ahead and appointed two new election commissioners (ECs) in accordance with a statute which is being legally contested, the Supreme Court observed on Friday as it agreed to hear the matter on March 21.

A bench, headed by Justice Sanjiv Khanna, said the court would have to wait for the applications to be listed formally before considering the petitioners’ objections to the Centre appointing ECs under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

As senior counsel Vikas Singh, representing one of the petitioners in the case, stressed that the two new ECs were appointed on Thursday despite the validity of the law under challenge before the top court, the bench responded: “That is something for them to answer why they went ahead when the matter was pending before us.” The bench also comprised justice Dipankar Datta and Augustine George Masih.

Solicitor-general Tushar Mehta, who appeared for the Centre, said that he does not have copies of the applications moved by the petitioners, which included Congress leader Jaya Thakur and the non-profit Association for Democratic Reforms (ADR). He added he would respond appropriately when the case is taken up on the next date. 

During the brief hearing, the court told the lawyers appearing for the petitioners, including senior counsel Kapil Sibal and advocate Prashant Bhushan, that it has on two previous occasions refrained from staying the legislation. “Normally, we don’t stay a law at an interim stage. There may be certain exceptional cases but normally we don’t,” it observed. The lawyers responded that they would argue on the next date that the present case warrants an extraordinary order.

The President on Thursday appointed retired bureaucrats Gyanesh Kumar and Sukhbir Singh Sandhu as election commissioners after a high-level selection committee headed by Prime Minister Narendra Modi met in the morning. It was the first time that election commissioners were chosen under a controversial new law just weeks before Lok Sabha polls.

Following the surprise resignation of Arun Goel and the retirement of Anup Chandra Pandey, India’s poll watchdog was left with merely Rajiv Kumar as chief election commissioner.

The new officers were picked by the committee consisting of Modi, Union home minister Amit Shah, and Lok Sabha Leader of Opposition Adhir Ranjan Chowdhury. Chowdhury gave a dissent note on the selection, raising questions over the procedure. Singh and Kumar fill the two vacancies left by Pandey’s retirement on February 15 and Goel’s resignation on March 9.

The Election Commission of India (ECI) on Friday said that it will announce the schedule for the Lok Sabha elections and some state assemblies on Saturday.

ADR earlier this week moved a plea to restrain the Centre from appointing two new election commissioners under the 2023 law. It demanded that until the legality of the new law was decided, the government be ordered to fill the two positions through a consultative procedure that involves the Chief Justice of India (CJI) in the selection panel.

ADR requested the court to stay the operation of Section 7 of the 2023 Act, which envisages the composition of the panel to appoint CEC and ECs. It claimed that the composition of the committee amounts to excessive interference of the executive in the appointment of CEC and ECs and is detrimental to the independence of the ECI.

“The Selection Committee, which is ex facie dominated and controlled by the members from executive i.e. Prime Minister and Union cabinet minister (to be nominated by the Prime Minister) renders the selection process vulnerable to manipulation as it gives unfettered discretion to the ruling party to choose someone whose loyalty to it is ensured,” added ADR.

The plea highlighted how the new law marked a crucial departure from a judgment of a Constitution bench of the Supreme Court in March last year, which directed for the inclusion of the CJI in the selection panel until Parliament came up with a new law.

The judgment in the Anoop Baranwal Versus Union of India case said that the selection of CEC and ECs should be done by a panel headed by the Prime Minister and comprising two other members – the leader of Opposition in Lok Sabha and the CJI to ensure transparency in the selection mechanism.

The new mechanism for appointment of CEC and ECs, ADR argued, has not removed the defect that the court had found in the previous regime but has sought to restore the previous position when appointments were being made solely by the executive.

Citing the two vacant positions at that time, ADR said: “Now, the Executive has the ability to appoint two election commissioners which can give an unfair advantage to the Executive. The role of the Election Commission is critical in ensuring free and fair elections and therefore, the appointments must also be seen to be fair and free from any bias or latches to the government of that time.”

ADR initially moved the Supreme Court by filing a writ petition last month, questioning the exclusion of the CJI from the selection committee. It urged the court to declare the 2023 law unconstitutional for allegedly failing to preserve free and fair elections – a part of the basic structure of the Constitution. A similar plea was filed by Thakur earlier, and both petitions are scheduled to come up in April.

In both these petitions, the court has refused to issue an interim order by either putting any provision of the 2023 Act in abeyance or restraining the Centre from holding a meeting to pick ECs. On February 13, ADR’s plea to stall a meeting of the selection panel was turned down by a bench led by Justice Khanna, saying the operation of a law cannot be suspended through an interim order.